Kidushin in Thirty Days

Kidushin (3:1) | Yisrael Bankier | 5 months ago

Kiddushin can be perform based on a condition. For example, we have
learnt that one can perform kiddushin on condition that it will only
take effect in the thirty days time. The Mishnah (3:1) however teaches
that if one does so, and during that time another person performs
kiddushin then she is considered married to the second man and not the
first. We shall probe this ruling.

The Gemara (59b) initially records a debate about what happens after
the thirty-day period. According to Rav, she remains married to the
second man, while Shmuel disagrees and the kiddushin of the first
man would take hold. The Gemara however rejects this understanding of
the debate and explains that Rav and Shmuel were arguing about a
different case. The reason is that once kiddushin of the second man
takes hold during the thirty-day period, it cannot simply disappear on
its own once the period expires. In other words, everyone agrees that
should would remain mekudeshet (betrothed) to the second man.

What if the second man divorced her or died before the thirty-day period
expires? Would the kiddushin of the first man then take hold?

The Tosfot R' Akiva Eiger cites the Ramban who maintains that she
would indeed be mekudeshet to the first man. The Ramban derives this
from the Mishnah that simply writes that she is mekudeshet to the
second man and does not state that she is not mekudeshet to the first.
In other words, the only thing preventing the kiddushin of the first
man from working in the Mishnah is that once the time expires she is
already mekudeshet to someone else. It is not however that the second
kiddushin somehow reverted the first. Consequently, if she is no
longer mekudeshet to the second man when the time expires, the first
kiddushin would still work. The Ramban cites the Yerushalmi that
also maintains this position.

Interestingly the Ramban continues, citing the Yerushalmi, that if
the second man died during this period and she required yibum, this
would also prevent the first kiddushin from working. The Ramban
explains that the Yerushalmi maintains Rav's position that
kiddushin in general would not work for a shomeret yabam (a women
who is waiting for either yibum or chalitza). The Ramban however
explains that since we rule that kiddushin does work with a shomeret
yabam, she would require a get from the first man and yibum or
chalitza from the brother of the second.

The Rashba however disagrees. He explains that we rule according to
R' Yochanan who maintains that even if no one else came during this
period, and she simply changed her mind, this would prevent the
kiddushin from taking effect. The Rashba reasons that if a
declaration alone can prevent the kiddushin, then certainly her
accepting the kiddushin from someone else should be no different. He
rejects the Ramban's proof from our Mishnah since once it states
that she is mekudeshet to the second man, it is understood that she is
not mekudeshet to the first.

The Ran however dismissed the Rashba's argument. The Ran accepts
that in general an action demonstrating one's intent is more powerful
than a declaration. He however argues that her accepting the kiddushin
from the second man need not be interpreted as a complete retraction
from the first. She could still be maintaining the first kiddushin if
the second's does not work out during this period.1 The Ran argues
that since the Gemara entertained the idea that according to Shmuel
that second kiddushin would only work until the thirty days were
complete, this must mean that her acceptance of the second kiddushin
is not a complete rejection of the first.

In defence of the Rashba, the Tosfot R' AkivaEiger rejects the
Ran's proof. He explains that according to the original assumption,
Shmuel maintains the second kiddushin would be temporary.
Considering it is temporary, that is why the acceptance would not be
considered a rejection of the first kiddushin. However according to
the conclusion, where the acceptance of the second kiddushin would be
permanent, perhaps such acceptance should indeed be considered as a
rejection of the first kiddushin. Consequently no proof can be brought
from the Gemara's initial assumption.